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Court of Criminal Appeal 6 September 2011

SEVASTOPOULOS v REGINA

[2011] NSWCCA 201

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE RANGE OF OBJECTIVE SERIOUSNESS ACCUSED PAROLE PERIOD INFRINGED FINDING OF SPECIAL CIRCUMSTANCES MADE

Citation: Sevastopoulos v Regina [2011] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 6 September 2011
Judges: Tobias AJA, Johnson J, Hall J (Hall J delivered the principal judgment)

Background

The applicant pleaded guilty in the District Court to supplying a large commercial quantity of cocaine (2.25 kilograms) between February and March 2005, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. His role was that of a broker: he arranged sales between suppliers and buyers, receiving a commission for connecting the parties. He did not hold a managerial position within the drug supply network.

The sentencing judge, her Honour Judge Ainslie-Wallace, imposed a total term of 12 years and 6 months with a non-parole period of 9 years, commencing 9 May 2005. Her Honour made a finding of special circumstances (a term used under the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard one-third ratio between non-parole period and total sentence) based on the applicant's age and long-standing drug addiction. Despite that finding, the non-parole period was reduced by only approximately 19.5 weeks from what the standard ratio would otherwise have produced.

The applicant sought leave to appeal, raising three grounds: that his role as a broker with no managerial function warranted a finding of below mid-range objective seriousness; that the sentence gave rise to a legitimate grievance under the parity principle by reference to co-accused who received lesser sentences; and that the special circumstances finding was not meaningfully reflected in the non-parole period.

  • Whether the applicant's role as a broker, with no managerial function and minimal payment, warranted a finding that the offence fell below the mid-range of objective seriousness.
  • Whether the disparity between the applicant's sentence and those of co-accused gave rise to a legitimate grievance under the parity principle.
  • Whether the non-parole period, as imposed, failed to give adequate effect to the finding of special circumstances.

Decision

On the first ground, the Court accepted that the applicant's role was that of a broker rather than a manager or organiser. However, the Court found that the sentencing judge had not erred in assessing the offence as falling within the mid-range of objective seriousness. The applicant was not a low-level participant: he was well entrenched in the criminal enterprise, had brokered significant quantities of cocaine, had previous drug-related convictions, and his conduct was planned and calculated rather than impulsive.

On the parity ground, the Court concluded that the applicant did not have a legitimate grievance. The sentencing judge had expressly identified significant differences between the applicant's role and those of the co-accused who received lesser sentences. The co-accused's circumstances were materially different, and no infringement of the parity principle was established.

On the special circumstances ground, the Court found that error had been established. Although a finding of special circumstances had been made, the consequential adjustment to the non-parole period was minimal, extending the parole period by only approximately 19.5 weeks. The Court held that this failed to give the finding any meaningful effect, particularly given the underlying purposes of the finding: supporting rehabilitation from long-standing drug addiction and reducing the risk of reoffending. A reduction of the non-parole period from 9 years to 8 years and 6 months, producing a parole period of 4 years, was found to strike the correct balance.

Orders Made

  • Leave to appeal granted.
  • The appeal upheld in part.
  • The applicant re-sentenced to a non-parole period of 8 years and 6 months, commencing 9 May 2005 and expiring 8 November 2013, with an additional term of 4 years commencing 9 November 2013 and expiring 8 November 2017.
  • Earliest eligible release on parole: 9 November 2013.

Key Takeaways

  • A broker role in a drug supply network does not automatically place an offence below the mid-range of objective seriousness, particularly where the offender was entrenched in the enterprise, handled significant quantities, and acted in a planned and calculated manner.
  • Where a sentencing court makes a finding of special circumstances, that finding must be given genuine and meaningful effect in the resulting non-parole period; a nominal adjustment of approximately 19.5 weeks was found to be insufficient.
  • The parity principle requires more than a mere disparity in sentences between co-accused: the applicant must demonstrate a legitimate grievance, taking into account the material differences between the respective offenders' roles and circumstances.
  • Under the Crimes (Sentencing Procedure) Act 1999, special circumstances findings based on drug addiction and age are directed towards facilitating rehabilitation through an extended supervised parole period, and the sentence structure should reflect that purpose.
  • In allowing the appeal in part, the Court of Criminal Appeal confirmed that a 6-month reduction to a non-parole period, where directed towards rehabilitation, is not an inconsequential adjustment.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Cicciarello v R [2009] NSWCCA
- Lau v R [2010] NSWCCA 43
- OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267
- R v McNaughton (2006) 66 NSWLR 566
- R v Pavan [2009] NSWDC 82
- R v Sinkovich [2011] NSWCCA 90
- R v Sutton [2004] NSWCCA 225
- R v Wahabzadah [2001] NSWCCA 253
- R v Way (2004) 60 NSWLR 168
- Tyler v R; R v Chalmers (2007) 173 A Crim R 458